Democrats’ midterm rout may have just put the Supreme Court’s conservative supermajority on borrowed time, and the fallout could last a generation, according to political analyst Tom Schaller.
Writing in the Public Notice newsletter on Substack, Schaller contends that the most important thing Democrats won on Nov. 3 that will affect the courts is the Senate, which confirms nominees.
“Generational victories, after all, should beget generational consequences,” he wrote.
Schaller’s first suggestion is modeled directly on one of Mitch McConnell’s strategies. He called on Senate Democratic leader Chuck Schumer to stonewall judicial nominations from Donald Trump during the remainder of his term, blocking confirmation of any Supreme Court nominee and virtually all appeals court nominees, as McConnell did with Barack Obama’s nomination of Merrick Garland in 2016.
Schaller contends that the Supreme Court, with its current 6-3 conservative majority, is out of sync with the country. Democratic presidential candidates won the popular vote in seven of nine elections between 1992 and 2024, by a combined 33.7 million votes. Yet, since 1993, presidents from both parties have each appointed five justices. Schaller blames the Electoral College for this imbalance, as well as McConnell’s blocking of Garland, Justice Anthony Kennedy’s well-timed retirement in 2018, and the death of Ruth Bader Ginsburg in 2020.
The balance of power may change soon. Justices Clarence Thomas, 78, and Samuel Alito, 76, could both remain on the court until 2028. Schaller contends that a Democratic win of the White House and retention of the Senate could see either Thomas or Alito replaced, producing a 5-4 liberal majority. Also, Justice Sonia Sotomayor, a liberal who is 72, could retire during a Democratic administration, allowing a younger replacement.
Schaller thinks that a Democratic Senate is a strong possibility for 2028. Republicans Ted Budd of North Carolina and Ron Johnson of Wisconsin were both narrowly elected in 2022, with 50.5 percent and 50.4 percent of the vote, respectively. In Iowa, Sen. Chuck Grassley, 93, has said he won’t resign early to let GOP Gov. Kim Reynolds appoint his successor before Democratic Governor-elect Rob Sand takes office. On the other hand, Democrats will have to defend Sen. Raphael Warnock of Georgia, who won a 2022 runoff, and Sen. Catherine Cortez Masto of Nevada, who won by fewer than 8,000 votes.
The picture is less promising for the 2030 elections. Democrats don’t have many opportunities to pick up seats, and Democratic Sens. Ruben Gallego of Arizona and Jacky Rosen of Nevada both had narrow wins in 2024. Also, midterm elections generally favor the party not in the White House.
Court reformers, of course, want to do more than just block Trump’s nominees. Rep. Jim Clyburn and other members of the Congressional Black Caucus are calling for the addition of four justices. Sen. Cory Booker is pushing for 18-year term limits that would give every president two justices per term. Some reformers are calling for stricter ethics rules aimed at Thomas and Alito over what critics call self-enrichment.
The first question will be whether Senate Democrats are willing to play McConnell’s game against Trump’s judicial nominations when the new Congress convenes in January.